In the recent Supreme Court case of The Owners Strata Plan No 2245 v Veney  NSWSC 134, Darke J made a guiding decision concerning the interpretation of by-laws and alleged nuisance within a strata scheme.
This case concerned a strata scheme registered in 1966, comprising of 100 lots. Lots 1 to 50 were residential apartments, while lots 51 to 100 were parking spaces associated with the residential lots.
The Owners Corporation (Plaintiff) sought declaratory relief in relation to the proper construction of a special by-law (“by-law”), and injunctive relief to prevent a lot owner, Mr Veney (Defendant), from parking any motor vehicle in his parking space lot (Lot 51) within the strata scheme.
The Plaintiff contended that the Defendant’s use of Lot 51 to park a motor vehicle meant that several other parking space lots in the scheme could not be easily accessed with motor vehicles, due to the dimensions and location of Lot 51. It appears that this was due to a deficiency in the original design layout of the parking area. A garden rockery located on the common property in the vicinity of Lot 51 also contributed to this issue. The combination of the location of the common property rockery and the location of the Defendant’s Lot 51 meant that several other occupiers of parking space lots could not enter or exit their parking spaces with motor vehicles when the Defendant parked a vehicle within his parking space.
In 1998, the Plaintiff had passed a special by-law granting the owner of Lot 51 a right of exclusive use and enjoyment of an area of the common property for the purpose of parking a vehicle. The Defendant was not the owner of the concerned Lot 51 when the by-law was made. The Plaintiff contended that the intent of the by-law was to provide the owner of Lot 51 with an alternative parking space on the common property, on the condition that Lot 51 would not be used to park a vehicle, thereby resolving the design deficiency in the layout of the parking area. However, the by-law itself was silent on this matter and included no conditions in relation to the use of Lot 51 for the purpose of parking a vehicle.
The Plaintiff contended that when read in the context in which it was made, the by-law should be construed so that the right of exclusive use it conferred over part of the common property was given to the owner of Lot 51 in substitution for the right to use the lot as a car parking space. Accordingly, the Plaintiff asserted that the Defendant had no right to use the lot as a parking space. It was further submitted that the Court should take into account evidence concerning the historical context of the making of the by-law, the physical characteristics of the land at the time the by-law was made, and the contents of a letter which discussed a potential arrangement whereby use of the common property would be given to the owner of the lot in exchange for forfeiture of the right to park a vehicle within Lot 51.
It was further submitted that as long as the Defendant used Lot 51 as a parking space, he was committing an actionable nuisance under s 153(1) of the Strata Schemes Management Act 2015 (“SSMA”). The nuisance was alleged to be regarding other lot owners having obstructed vehicular access to their parking lots.
The Interpretation of By-laws
At , Darke J considered the following principles put forward by McColl JA in The Owners of Strata Plan No 3397 v Tate:
- By-laws are a “series of enactments” by which the proprietors in a body corporate administer their affairs; they do not deal with commercial rights, but the governance of a strata scheme;
- By-laws have a public purpose which goes beyond their function of facilitating the internal administration of a body corporate;
- Exclusive use by-laws (now known as common property rights by-laws) may be inspected by third persons interested in acquiring an interest in a strata scheme. Their meaning should be understood from their statutory context and language;
- By-laws may be characterised as either delegated legislation or statutory contracts;
- Whichever be the appropriate characterisation, common property rights by-laws should be interpreted objectively by what they would convey to a reasonable person;
- In interpreting common property rights by-laws, the Court should take into account their constitutional function in the strata scheme in regulating the rights and liabilities of lot proprietors inter se;
- There does not appear to be a strong argument for saying exclusive by-laws should be interpreted as a business document, with the intention that they be given business efficacy. That does not mean that a common property rights by-law may not have a commercial purpose and be interpreted in accordance with the principles expounded in cases such as Antaios Compania Naviera SA, but due regard must be paid to the statutory context in doing so;
- A common property rights by-law should be construed so that it is consistent with its statutory context; a court may depart from such a construction if departure from a statutory scheme is authorised by the governing statute and if the intention to do so appears plainly from the terms of the by-law;
- Caution should be exercised in going beyond the language of the by-law and its statutory context to ascertain its meaning; a tight rein should be kept on having recourse to surrounding circumstances.
At , it was held that it is “necessary to consider the language of the by-law, viewed in the statutory context in which it was made; and whilst recourse to surrounding circumstances may be permissible as an aid to construction it is necessary, particularly bearing in mind the public purpose of strata scheme by-laws, to exercise caution in going beyond the language of the by-law itself and its statutory context”.
At , Darke J held in accordance with the principles in Tate that regard should not be given to the historical evidence relied upon on the question of construction of the by-law. At , it was stated that the by-law is to be interpreted by reference to its language, understood in the statutory context in which it was made. His Honour also noted at  that:
“If it was intended to cut down the property rights of the owner of Lot 51 it would be expected that words clearly showing the intention would be included. I do not think that words to that effect should be effectively read into the by-law.”
Rejecting the Plaintiff’s submission concerning the proper construction of the by-law, his Honour held that “the language of the by-law, read in its statutory context, would convey to a reasonable person that a new right was being conferred upon the owner for the time being of Lot 51, subject only to the specified condition. In doing so, his Honour considered that:
- the physical characteristics of the site at the time the by-law was made were not a useful aid to construction;
- none of the conditions specified in the by-law were concerned with the existence or exercise of any rights the owner of Lot 51 as such;
- the ordinary and natural meaning of the words of the by-law, considered in the context of Division 4 of Chapter 2 of the Strata Schemes Management Act 1996 is that a new right is conferred upon the owner;
- none of the conditions specified in the by-law operated to restrict of a right held by the owner to park a vehicle; and
- it would have been open to include a condition to the effect that, for so long as the by-law was in place, the owner of lot 51 would not exercise that right. Had that been the intention it would have been a simple matter to include a suitably worded condition accordingly.
The following principles were stated in relation to nuisance:
- The mere causing of some inconvenience is not necessarily an actionable nuisance.
- An actionable nuisance may be described as unlawful interference with a person’s use or enjoyment of land, or of some right over or in connection with the land. Liability is founded upon a state of affairs created, adopted or continued by a person, otherwise than in the reasonable and convenient use of the person’s own land, which to a substantial degree, harms another owner or occupier of land in the enjoyment of that person’s land (citing Hargrave v Goldman (1963) 110 CLR 40).
- “A balance has to be maintained between the right of the occupier to do what he likes with his own land, and the right of his neighbour not to be interfered with. It is impossible to give any precise or universal formula, but it may be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society” (restating the principle in Sedleigh-Denfield v O’Callaghan  AC 880, cited as the “proper test” in Elston v Dore (1982) 149 CLR 480).
- The meaning of actionable nuisance under section 153(1)(a) of the SSMA, should be interpreted in accordance with the common law meaning of actionable nuisance in circumstances where nuisance is not defined for the purposes of section 153.
In dismissing the claim of actionable nuisance, the Court found that:
- there was very little evidence of the actual dimensions and areas of the parking space lots or the surrounding common property available for the passage of motor vehicles, aside from what could be gleaned from the strata plan itself;
- the report tendered appeared to only be based in part on some on-site measurements;
- there was little evidence available to ascertain with precision the extent to which the Defendant parking a car within Lot 51 interfered with occupiers of other lots in the use and enjoyment of their parking space lots;
- the inconvenience was not brought about solely by the parking a vehicle within Lot 51, but by additional factors that operated in tandem, such as the presence of a common property rockery and the area being susceptible to becoming a “bottleneck” in the event of multiple manoeuvres;
- even if Lot 51 was not occupied by a vehicle, getting into and out of the other parking spaces would require a number of manoeuvres;
- the owners and occupiers of other parking spaces lots in the scheme had no legal right to cross into the Defendant’s Lot 51 for the purposes of manoeuvring their vehicles; and
- it was open to the Plaintiff to take steps to alter the layout of the parking area by having the common property rockery and other landscaped areas removed or altered to address the issue, which the Plaintiff was unwilling to do.
The Owners Corporation and Common Property
Consideration was given to the fact that the existence of the common property rockery in the vicinity of the Defendant’s Lot contributed to the difficulties experienced by the occupiers of parking space lots in achieving access to or egress from their parking space lots with vehicles. To that extent it was held that:
- owners of lots in a strata scheme have rights to use the common property of the scheme in order to obtain reasonable access to their lots (EB 9 & 10 Pty Ltd v The Owners – Strata Plan No 934 (2018) 97 NSWLR;  NSWSC 464 at -);
- those rights, at least for some owners, were impeded to a degree by the presence of the common property rockery and possibly by other small gardens in the vicinity; and
- the responsibility for the impediment of those rights lies with the Owners Corporation, which holds title to the common property as agent for the proprietors of the lots in the strata scheme (s 20 of the Strata Schemes (Freehold Development) Act 1973 (NSW)).
This case provides clear guidance on a variety of principles regarding nuisance in the context of strata disputes and the interpretation of by-laws.
On the issue of interpreting by-laws, the Court confirmed the principles in Tate, that by-laws are to be interpreted objectively. Rarely, if ever will a Court take into account extraneous evidence of intent. The case is a reminder for all owners corporations, lot owners, and those involved in the preparation of by-laws to ensure that by-laws are drafted to be clear and certain in their terms.
On the issue of nuisance, the case serves as an unequivocal authority that nuisance under section 153 of the SSMA takes the common law meaning. Furthermore, regard should also be given to the fact that the bar to private nuisance at common law is relatively high, and mere inconvenience will not often be enough to establish nuisance. The case also serves as a reminder that section 153 of the SSMA is a blunt instrument that will not often be of assistance. Accordingly, an owners corporations should give consideration to regulating unwanted behaviour in specific terms by adopting suitable by-laws.
Regard should also be given to what his Honour noted at :
“Viewing the circumstances of the strata scheme overall, I do not think that the use of Lot 51 for parking should be regarded as amounting to an unreasonable interference with the rights of any other owners or occupiers of lots within the strata scheme.”
This is suggestive of a developing position that courts are moving toward taking a “strata scheme” centric approach to strata disputes, where the concept of a “strata scheme” is a central organising jurisprudential notion.
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